NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

MEMORANDUM DECISION

THUMMA, Judge.

Appellant Brandon Caley Stem (Stem) appeals from his convictions and resulting sentences from one count of theft of means of transportation and one count of possession of burglary tools, arguing the superior court improperly imposed consecutive sentences. Finding no error, this court affirms Stem's convictions and sentences.

FACTS1 AND PROCEDURAL HISTORY

¶ 1 Shortly after receiving a stolen truck report in June 2012, Glendale police received an anonymous call that two individuals at a specific street address had a stolen truck outside their apartment. Officers in unmarked cars went to the apartment and confirmed that the truck's vehicle identification number matched the stolen truck's vehicle identification number.

¶ 2 Later that day, a detective watched Stem walk out of the back of the same street address and get into the passenger side of the stolen truck. The detective saw Stem "looking down toward the steering [wheel] or something" and then saw Stem drive off in the truck. When Stem returned to the apartment, multiple detectives were at the scene and arrested him. When searched incident to his arrest, Stem was in possession of a screwdriver, knife, brass knuckles and a key ring with three keys.

¶ 3 Stem was charged with theft of means of transportation, a class three felony, and possession of burglary tools, a class six felony. After a two-day jury trial, Stem was found guilty and sentenced to a presumptive prison term of 11.25 years on the theft of means of transportation conviction and a consecutive presumptive prison term of 3.75 years on the burglary tools conviction, with credit for 220 days of presentence incarceration for the theft of means of transportation conviction. From Stem's timely appeal, this court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1) (2014).2

DISCUSSION

¶ 4 Stem argues the superior court improperly imposed consecutive sentences. Because Stem did not object to consecutive terms at the time of sentencing, this court reviews for fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 607 (2005). Accordingly, Stem "bears the burden to establish that `(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.'" State v. Bearup, 221 Ariz. 163, 168 ¶ 21, 211 P.3d 684, 689 (2009) (citations omitted).

¶ 5 "An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent." A.R.S. § 13-116. The parties agree that State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989) sets forth the proper analysis to determine if consecutive sentences are permissible. Under Gordon, the first part of the inquiry involves "considering the facts of each crime separately, subtracting from the factual transaction the evidence necessary to convict on the ultimate" crime. 161 Ariz. at 315, 778 P.2d at 1211. "If the remaining evidence satisfies the elements of the other crime," a second inquiry is undertaken to "consider whether, given the entire `transaction,' it was factually impossible to commit the ultimate crime without also committing the secondary crime." Id. at 315, 778 P.2d at 1211.3

¶ 6 As applied, Stem's conviction for the ultimate charge was pursuant to a statute stating "[a] person commits theft of means of transportation if, without lawful authority, the person knowingly . . . [c]ontrols another person's means of transportation knowing or having reason to know that the property is stolen." A.R.S. § 13-1814(A)(5). Stem's conviction for the secondary crime was pursuant to a statute stating "[a] person commits possession of burglary tools by . . .[p]ossessing any . . . tool, instrument or other article adapted or commonly used for committing any form of burglary . . . and intending to use or permit the use of such an item in the commission of a burglary." A.R.S. § 13-1505(A)(1).

¶ 7 Stem argues that the first Gordon inquiry is not met here because the facts necessary to convict him of the more serious charge "are that he knowingly controlled the [truck] by entering the truck and driving it and that he was able to drive it by starting it with the screwdriver in his possession. If those facts are eliminated, there are no remaining facts to prove [the] possession of burglary tools charge." However, Stem's application of the Gordon analysis is flawed.

¶ 8 The theft of means of transportation charge does not specify the manner the property was controlled. By statute, and as reflected in the charge to the jury, "control" is defined as acting "to exclude others from using their property except on the defendant's own terms." A.R.S. § 13-1801(A)(2). Evidence that Stem had control of, and was using the victim's truck without the victim's permission, was the only evidence necessary to convict on the ultimate crime. Regardless of how the truck was started or by whom, Stem's conduct in controlling the truck by driving it and doing so without permission satisfied the elements of theft of means of transportation.

¶ 9 No evidence was presented at trial to suggest that Stem could only "control" the truck with a burglary tool. The trial evidence showed that a screwdriver is usually used to "break the ignition . . . as well as the steering column itself, as well as starting the vehicle with it." Here, however, the detective "never saw [Stem] remove anything from his pockets" while in the truck, and could not identify what item Stem used to start the truck. When interviewed by police after the arrest, Stem said that "he didn't know" how he started the truck.

¶ 10 After subtracting the evidence presented at trial to convict Stem of theft of means of transportation, the question becomes whether the remaining evidence shows that Stem possessed burglary tools. See, e.g., State v. Martinez, 226 Ariz. 221, 225 ¶¶ 19-20, 245 P.3d 906, 910 (App. 2011). The trial evidence demonstrates it could have been possible for Stem to "control" the truck without the screwdriver. Thus, the "remaining" evidence shows that Stem possessed burglary tools, and under the first Gordon inquiry, consecutive sentences were permissible.

¶ 11 Addressing the second Gordon inquiry, considering the entire series of events, the evidence shows that Stem could have committed theft of means of transportation by stealing the truck without also possessing the screwdriver. No evidence showed that Stem actually used the screwdriver to start the truck or that the screwdriver was necessarily connected to the truck theft. Moreover, intent to use (rather than actual use) of the screwdriver in the commission of a burglary is enough under the statute to commit possession of burglary tools. Thus, it was not "factually impossible to commit the ultimate crime without also committing the secondary crime." Gordon, 161 Ariz. at 315, 778 P.2d at 1211. Accordingly, under the Gordon analysis, consecutive sentences were not prohibited by A.R.S. § 13-116.

CONCLUSION

¶ 12 Stem's convictions and resulting sentences are affirmed.